TMI Blog2018 (12) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... t chargeable on sale of this agricultural land. In the remand report, also it is apparent that the impugned land is situated beyond 8 km from Ghaziabad Nagar Nigam. Ide - impugned land sold by the assessee is not a capital asset as it is situated beyond 8 km from the outer limit of the Ghaziabad Nagar Nigam. Hence, no capital gain is chargeable in the hands of the assessee on sale of the impugned agricultural land. - Decided in favour of assessee. For reopening of assessment assessing officer is correctly initiated the reopening of the assessment because the assessee has sold a impugned land and no return of income has been filed. In view of this the learned assessing officer has reasonable believe that income of the assessee has esc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pality having regard to the extent of, and scope for urbanization of that area etc.. In fact said notification comprises only one municipality, namely Ghaziabad which is in the vicinity of the impugned land. Undisputedly it is situated at a distance of more than 8 kms away from the limits of municipality of Ghaziabad; hence it is a rural agriculture land and as per law it is not a subject matter of taxation. 3. Further the learned CIT (A) has erred in law as well as on merits of case was not justified to measure the distance of impugned land from the outer limit of Loni Nagar Palika as he was of the view that it can be judged from any municipality nearest to impugned land. However facts are contrary to it, it can only be measure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the total assessed income of assessee at ₹ 34 lakhs. 5. The assessee aggrieved with the order of the learned assessing officer preferred an appeal before the learned commissioner of income tax (appeals) 2, Noida. Before the learned commissioner of income tax appeals the assessee furnished and application for admitting of the additional evidence under rule 46A (3) of the income tax rules 1962 which were admitted by the learned commissioner of income tax appeals) number 4.9 of his order. With respect to the merits of the addition the assessee submitted before him that the impugned land sold by the assessee is not a capital asset as it is an agricultural land and further the population of the village where the agricultural land i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii)(b) of the act the impugned plot of land is a capital asset and therefore the assessee is liable to pay capital gain over sale of such land. He further held that the said land was purchased in the year 1988 through 3 different purchase dates and granted the cost of acquisition as mentioned in those purchase deeds at indexed cost. Therefore, he upheld the chargeability of the capital gain on the sale of impugned land. 6. Assessee aggrieved with the order of the learned commissioner of income tax appeals has preferred appeal before us. It is submitted that Loni is not included in the notification number SO 10 (E) dated 6/1/1994 and therefore distance from Loni cannot be measured in any eventuality for ascertaining whether the land in qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is apparent that for holding whether the impugned land is a capital asset or not the distance of this land has to be measured only from municipal limit of Ghaziabad and not from Loni. As it has been stated by the learned commissioner appeals that the distance from the Ghaziabad Ministry per limit of the impugned land is 17.5 km and therefore it is not a capital asset and capital gain is not chargeable on sale of this agricultural land. In the remand report, also it is apparent that the impugned land is situated beyond 8 km from Ghaziabad Nagar Nigam. Identical issue has been decided by the coordinate bench in ITA number 6152/Del/2016 for assessment year 2008 09 dated 23/8/2017 where the land was also situated near Loni and the learned AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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